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Judgment
V. Bhaskara Rao, J.—This is a Writ Petition seeking modification of the order in file No. UC2/1984/82 and file No. A1/1246/81 of the respondents herein in so far as it related to computation of non-dwelling units and agricultural lands and to exclude the extents as detailed in the petition.
It is stated in the affidavit of the petitioner that he filed a statement u/s 6(1) of the Urban Land (Ceiling & Regulation) Act, 1976 (for short, ''the Act'') before the Special Officer and competent authority declaring the properties held by him. The competent authority passed an order u/s 8(4) of the Act and issued a final statement u/s 9 of the Act computing an extent of 3259.7 Sq. mts. to his holding after allowing an extent of 2000 Sq. mts. towards the ceiling area and thus he has declared an extent of 1259.7 Sq.mts. as excess vacant land by an order in file No. A1/1246/81 dated 8-2-1982.
His case is that the second respondent has erroneously computed (i) the built up area and the permissible land appurtenant thereto namely, rice mill and oil mill bearing Municipal No. 11/1579 to 1581 which is a non-dwelling unit, the total extent being 700 sq. mts. comprising of 180 sq. mts. built up area and 520 sq. mts. appurtenant land and (ii) an extent of 80 sq. mts. Being appurtenant land of godown, another non-dwelling unit bearing Municipal No. 16/763/1 at Grain Market, Warangal, besides (iii) a shop also a non-dwelling unit bearing H.No. 8-10-5 measuring 167 sq. mts. situated at J.P.N. Road, Warangal. It is further stated that the second respondent has wrongly computed (iv) another extent of 77 sq. mts. in H.No. 14-1483/1/1 to his holding although it was not held by him. Further (v) agricultural land measuring 3.1 guntas equivalent to 315 sq. mts. in S.No. 298/1 situated a Desaipet was erroneously computed to his holding. Thus, aggregating extent of 1259 sq. mts. has been determined as excess vacant land.
As regards item No. (ii) his case is that a non-dwelling unit godown was constructed long prior to the appointed day i.e., 28-1-1976 and the land appurtenant thereto being 80 sq. mts. is fit to be excluded. Similarly, item No. (iii) double storied building bearing Municipal No. 8/925 (old) and present number is 8-10-5 admeasuring 167 sq.mts. situated at J.P.N. Road, was also constructed long before the appointed day and it is a non-dwelling unit and consists of shops and showroom in the ground floor partly office accommodation and partly accommodation to the staff and hence it is also fit to be excluded. So also item No. (i), namely, the premises bearing No. 11-1579, 1580, 1581 which is rice and oil mills situated at Narsampet Road, Warangal, was also constructed long prior to the appointed day and it is also non-dwelling unit and his share therein works out to 700 sq. mts. comprising of 180 sq. mts. of plinth area and 520 sq. mts. of appurtenant land, but that is also fit to be excluded. Likewise, item No. (iv) premises bearing No. 14/1483/1-1 Pochamma Maidan, Warangal, was not held by him at all and hence an extent of 77 Sq. Mts. which is wrongly computed to his holding is fit to be excluded. Likewise, item No. (v), land of 3.1 guntas, equivalent to 315 sq. mts. situated at Desaipet is an agricultural land within the meaning of Section 2(0) of the Act and the entire extent of 1262 sq. mts. covered by item No. (v) cannot be computed to his holding and if that is excluded from his holding there will be no excess vacant land.
The petitioner filed this Writ Petition with the above contentions. He stated that he preferred an appeal to the first respondent and he has been given partial relief, namely 80 sq. mts. in item No. (ii); 167 sq. mts. in item No. (iii); an extent 500 sq. mts. being appurtenant land in item No. (i) etc. and total extent of 1311 sq.mts. is fit to be excluded. His grievance is that although in the findings Respondent No. 1 held in the above manner, the operative portion of the impugned order is not in accordance with the above findings inasmuch as an extent of 1311 sq.mts. is ordered to be set off against the ceiling area of 2000 sq.mts. and thus he dismissed the appeal filed by him.
It is now asserted in this Writ Petition that Warangal Urban Agglomeration is categorised as of ''D'' class as per Column No. 2 in item No. 5 of Schedule I of the Urban Land (Ceiling and Regulation) Act and the ceiling limit for ''D'' category urban agglomeration is 2000 sq. mts. As an extent of 1311 sq. mts. is fit to be excluded from an extent of 3259.7 sq. mts. computed by R.2, the balance works out to 1948.7 sq. mts. of vacant land and the same is within the ceiling limit. The petitioner also filed a petition u/s 45 of the Act on 9-9-1986 requesting R.1 to rectify the error or discrepancy between the operative portion and findings, but R. 1 has rejected the petition without considering the matter in its correct perspective. Hence this Writ Petition under Article 226 of the Constitution of India.
Sri C. Narayana Reddy, learned Counsel for the petitioner contended that the expressions of "vacant land" and "any other land" under the Act have been interpreted by the Supreme Court in Smt. Meera Gupta Vs. State of West Bengal and others, and assailed the findings of both the respondents and pointed out that the constructed area of the land which is fit to be excluded from the definition of ''vacant land'' on the appointed day has not been, excluded and the same is contrary to the ratio in the above judgment. In Smt. Meera Gupta Vs. State of West Bengal and others, . it is held,
"The lands over which buildings are commenced after the appointed day and the building progresses to complete thereafter i.e., the lands which were vacant on the appointed day but not so thereafter because of the surface change would be covered by the expression "any other land" occupation in Section 4(9). The expression "vacant land" in the first portion of Section 4(9) connotes land minus land under buildings constructed in the process of construction before and on the appointed day and the expression "vacant land" in the latter portion of the provision connotes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto. Such an inter pretation is required by the context as otherwise the concept of the appointed day and the excluded period would be rendered otiose. The Legislature cannot be accused to have indulged in trickery or futility in giving something with one hand and taking it away with the other. "Any other land" in the sequence would thus mean any other built-upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed, or was in the process of construction, on the appointed day.
Aforesaid interpretation finds support from Section 5 which pursues and does not leave alone transfer of vacant land in the gap period. The provision of Section 5 reflects the scheme of the Act inasmuch as transfers of vacant land within the gap period are ignorable, and likewise, vacant land brought under construction of building by a person within the gap period is also ignorable for the purposes of calculating the extent of vacant land, so that the provisions of law are not defeated by human ingenuity.
Section 4(11) when meaningfully construed in the context means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as any other land, over which there is a building with a dwelling unit therein. Sub-section (11) of Section 4 means to convey that what is not vacant land under sub-cls. (ii) and (iii) of Clause (q) of Section 2 cannot go to add up as "vacant land" under sub-section (9) of Section 4 by descriptive overlapping.
If the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same "any other land" to be reckoned for calculating the extent of vacant land held by a person. And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day then it is not "any other land" to be reckoned for calculating the extent of vacant land held by a person. This would be the proper interpretation of sub-section (9) of Section 4 as also of sub-section (II) of Section 4 and the definitive expressions used therein.
Where a person owned land on which construction was completed before the appointed day and vacant land besides within permissible limits, the built up property being excludible, the vacant land could not be declared "vacant land".
I perused the order of the competent authority u/s 8(4) of the Act. There are nine items situated at various places. The sum and substance of that order is that total area covered by these items works out to 3259.7 sq. mts. and the area allowed to be retained namely 2000 sq. mts. is deducted and 1259.7 sq.mts. is held to be excess area. When this order was assailed in appeal, R.1 considered a few items and it is held that 1311 sq.mts. is fit to be excluded. While doing so, it is shown as having been given set off against ceiling limit of 2000 sq. mts. I am unable to sustain this finding for the simple reason that for valid reasons the declarant is held to be entitled for exclusion of 1311 sq.mts. of land and after excluding the same from the total area held by him it is the balance that is to be computed to him and out of that balance area, the standard deduction of 2000 sq.mts. is to be given and then the balance if any is to be held as excess area. It is seen from the impugned order that Respondent No. 1 has not approached to this issue in that direction. Moreover, all nine items have not been considered by him. The Writ Petition is, therefore, fit to be allowed on the ground of non-application of mind by the first respondent.
In the result, the Writ Petition is allowed and the impugned order of first respondent is set aside and the matter is remanded to the first respondent for consideration of all the items computed by the Special Officer and exclude the built up areas as on the appointed day as ''such other land'' following the dicta laid down by the Supreme Court in the above citation and to compute the ceiling area afresh. There will be no order as to costs.